SC1142

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 19 0F 2010

TALIBE HEGELE
FOR HIMSELF AND ON BEHALF OF THE MEMBERS OF THE YUMBI CLAN, AS CHAIRMAN
Applicant

V

TONY KILA
FOR HIMSELF AND ON BEHALF OF THE MEMBERS OF THE NANO WEBO CLAN
First Respondent

ANDREW ELABE
Second Respondent

Waigani: Cannings J, Gabi J, Yagi J
2011: 28 November, 6 December

APPEALS AND REVIEWS – decision of National Court to restrain receipt and payment of royalties until customary land ownership issues have been determined – expiration of 40-day appeal period – whether aggrieved party should be granted leave to review National Court judgment under Constitution, Section 155(2)(b).

The applicant commenced proceedings by writ of summons in the National Court alleging fraud and conspiracy by the respondents concerning a consent judgment in earlier proceedings under which royalties and other benefits were shared between them, and seeking an order to set aside the consent judgment. During the course of the WS proceedings the National Court ordered on 13 October 2009 that the parties were restrained from collecting any royalties or equity benefits until land ownership issues and those proceedings had been determined. The applicant was aggrieved by that order as he claimed that it resurrected the question of ownership of customary land that had been resolved by a decision of the Provincial Land Court in 2006. However, he did not appeal within the 40-day period allowed by the Supreme Court Act, and waited 11 months before applying to the Supreme Court for leave under Section 155(2)(b) of the Constitution for review of the 13 October 2009 order. This is a ruling on the application for leave.

Held:

(1)	The applicant had a right to appeal within 40 days of the 13 October 2009 order, under Sections 14(1)(b), 14(3)(ii) and 17 of the Supreme Court Act, which he failed to exercise.

(2)	Therefore, three criteria had to be satisfied for leave under Section 155(2)(b) to be granted:

(a)	it is in the interests of justice to grant leave; and
(b)	there are:

(i)	cogent and convincing reasons and
(ii)	exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and

(c)	there are clear legal grounds meriting a review of the decision (Avia Aihi v The State [1981] PNGLR 81 applied).

(3)	Only criterion (c) was satisfied. Criteria (a) and (b) were not satisfied. In particular the application for leave was made after an inordinate delay (11 months after the order was made, and nine and a half months after the expiry of the appeal period) and no good reason was provided for it. It was not in the interests of justice to grant leave. Leave was refused.

Cases cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC855
Application by John Maddison & Bank South Pacific Ltd (2009) SC984
Avia Aihi v The State [1981] PNGLR 81
Hegele v Kila & Elabe (2011) SC1124
Tay v Gerau (2011) SC1097

APPLICATION

This was an application for leave to seek review under Constitution, Section 155(2)(b), of a judicial act of the National Court: an order in the nature of an injunction.

Counsel

M Nasil, for the applicants
S Soi, for the first respondent

6 December, 2011

1. BY THE COURT: This is a ruling on an application by Talibe Hegele, Chairman of the Yumbi Clan of Moran, Southern Highlands Province, for leave to seek review under Section 155(2)(b) of the Constitution of an order made by Deputy Chief Justice Salika in the National Court on 13 October 2009. Section 155(2)(b) of the Constitution states:

The Supreme Court … has an inherent power to review all judicial acts of the National Court.

2. The 13 October 2009 order was made in proceedings commenced by Mr Hegele, WS No 459 of 2008, against the respondents, Tony Kila, on behalf of the Nano Webo Clan, and Andrew Elabe, pleading fraud by them in relation to a consent order dated 27 December 2007 in earlier proceedings, OS No 687 of 2007, as a cause of action, and seeking an order setting aside the order of 27 December 2007. That order made legally binding a deed of release executed by Mr Kila and Mr Elabe on 1 October 2002 and provided for sharing of royalties and other benefits arising from a petroleum development licence regarding the Moran Oil Project. Mr Hegele was not a party to the OS No 687 of 2007 proceedings and claims that Mr Elabe had no authority to represent the Yumbi Clan in those or any other proceedings, the National Court proceedings were conducted secretly by Mr Elabe and Mr Kila, the order of 27 December 2007 was the product of fraud and a conspiracy between them and has had the effect of undermining a decision of the Provincial Land Court of 8 March 2006, which awarded ownership of the land that generates the royalties and other benefits to the Yumbi Clan, not the Nano Webo Clan.

3. On 13 October 2009 Salika DCJ made an interlocutory order in WS No 459 of 2008 in these terms:

1	The plaintiff, their servants and agents, the first defendants, their servants and agents, Andrew Elabe, his servants and agents, be restrained from collecting any royalty or equity benefit from the Department of Petroleum and Energy, Mineral Resources Development Company Limited, Oil Search Limited and the Department of National Planning until land ownership issues and these proceedings have been determined.

2	The Department of Petroleum and Energy, Mineral Resources Development Company Limited, Oil Search (PNG) Ltd and the Department of National Planning are restrained from releasing any royalty or equity benefit funds, compensation or any other form of monetary payments to any party until land ownership issues and these proceedings have been determined.

3	Costs of this application will be in the cause. [Emphasis added.]

4. Mr Hegele is aggrieved by the italicised parts of the order – "until land ownership issues … have been determined" – as he reckons that there are no land ownership issues left to be determined. The question of ownership was resolved, he claims, by the decision of the Provincial Land Court on 8 March 2006, which declared that his clan, the Yumbi Clan, was the sole customary landowner. That decision remains in force, he says, because leave to seek judicial review of it was refused, in OS No 185 of 2006, on 23 May 2006, and then an appeal against refusal of leave was dismissed, in SCM No 8 of 2006, by the Supreme Court on 9 October 2007. He argues that Salika DCJ's order of 13 October 2009 had the effect of resurrecting the issue of ownership of customary land, which should have been, as a matter of law, no longer a live issue. This led to confusion in the National Court when the WS No 459 of 2008 proceedings were dismissed on 12 May 2010. Kandakasi J dismissed the proceedings on the ground that the National Court had no jurisdiction, as the proceedings raised the question of ownership of customary land. Mr Hegele is also aggrieved by dismissal of the proceedings and has appealed against the order of 12 May 2010. In fact, he filed a notice of appeal on the same day, 12 May 2010, in SCA No 50 of 2010, and the hearing of that appeal (which recently survived an objection to competency: Hegele v Kila & Elabe (2011) SC1124) has been adjourned pending the outcome of the application that is now before us and a related application, in SCR No 10 of 2010. Mr Hegele did not, however, appeal against Salika DCJ's order of 13 October 2009.

5. Before setting out the issues in contention the following uncontentious matters are noted:

•	Mr Hegele had a right of appeal against the 13 October 2009 order. Although it was an interlocutory order, it was in the nature of an injunction and gave rise to questions of mixed fact and law. The combined effect of Sections 14(1)(b), 14(3)(ii) and 17 of the Supreme Court Act was to create a right to appeal within 40 days.

•	Because he failed to exercise his right of appeal Mr Hegele requires the leave of the Supreme Court to make an application under Section 155(2)(b) of the Constitution to review the order of 13 October 2009.

•	Three criteria have to be satisfied for leave under Section 155(2)(b) to be granted:

(a)	it is in the interests of justice to grant leave; and
(b)	there are:

(i)	cogent and convincing reasons and
(ii)	exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and

(c)	there are clear legal grounds meriting a review of the decision (Avia Aihi v The State [1981] PNGLR 81, Application by Herman Joseph Leahy (2006) SC855).

6. Each of the criteria is in contention. Our assessment of them will determine the fate of the application.
 
(a)	IS IT IN THE INTERESTS OF JUSTICE TO GRANT LEAVE?

7. What counts against the applicant is the delay in filing the application for leave. The following dates are noted:

•	13 October 2009 – the order of Salika DCJ that Mr Hegele wants leave to review.

•	6 May 2010 – the date of filing of these proceedings, SCR No 19 of 2010: note that the proceedings were commenced before the leave application was filed, which appears irregular.

•	10 May 2010 – the date that WS No 459 of 2008 was entirely dismissed.

•	14 September 2010 – the date of filing of the application for leave in SCR No 19 of 2010 that we are now determining.

8. The two key dates are 13 October 2009 and 14 September 2010. The date 6 May 2010 is not relevant to the calculation of delay as this was a case in which it was obvious that leave to seek review would be required, and the leave application was not filed until 14 September 2010. This means that the application for leave was made after an inordinate delay (11 months after the 10 October 2009 order was made, and nine and a half months after the expiry of the appeal period). Is there a satisfactory explanation for the delay? Mr Nasil, for the applicant, submits that it only became apparent when the pre-trial process was at an advanced stage that the issue of customary ownership of the land might be used as a reason to dismiss the proceedings, so the need to review the 13 October 2009 order was not appreciated until well after the appeal period had expired, and once the need to seek leave became apparent, and Mr Hegele was given proper legal advice, he acted quickly by filing the application under Section 155(2)(b) of the Constitution on 6 May 2010, and then filing the application for leave on 14 September 2010.

9. That is not a satisfactory explanation. The facts of the present case are comparable with those in Application by John Maddison & Bank South Pacific Ltd (2009) SC984 and Tay v Gerau (2011) SC1097, where delays of nine months and three years, five months, respectively, between the date of the National Court judgment sought to be reviewed and the date of filing the application for leave to seek review, were held to be so lengthy as to make it contrary to the interests of justice to grant leave. We consider that it is not in the interests of justice to grant leave.

(b)	ARE THERE COGENT AND CONVINCING REASONS AND EXCEPTIONAL CIRCUMSTANCES?

10. There are no cogent and convincing reasons or exceptional circumstances warranting the granting of leave. The effect of the order of 13 October 2009 has been subsumed by the order of Kandakasi J of 12 May 2010, by which the WS No 459 of 2008 proceedings were dismissed; and the order of 12 May 2010 is now the subject of appeal in SCA No 50 of 2010. We agree with the submission of Mr Soi, for the first respondent, that a review of the 13 October 2009 order would serve no useful purpose.

(c)	ARE THERE CLEAR LEGAL GROUNDS MERITING A REVIEW?

11. This criterion is satisfied as it would seem arguable that there may have been a misapprehension on the part of Salika DCJ in his Honour's presuming that the question of customary ownership of the land was an issue that remained un-determined.

CONCLUSION

12. As two of the essential criteria are not satisfied, we exercise our discretion by refusing to grant leave. Costs will follow the event.

ORDER

13. The Supreme Court will order that:

(1)	the application by Talibe Hegele for leave to seek review of the judicial act of the National Court at Waigani on 13 October 2009, in WS No 459 of 2008, ordering, amongst other things, that the parties are restrained from collecting any royalties or equity benefits until land ownership issues and those proceedings have been determined, is refused; and

(2)	costs of the proceedings are awarded to the first respondent to be paid by the applicants on a party-party basis, to be taxed if not agreed;

(3)	time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment accordingly.
_____________________

Nasil Lawyers: Lawyers for the Applicants 
Soi & Associates Lawyers: Lawyers for the First Respondent